AFFLE and Partner or Media Company are hereinafter jointly referred to as “Parties” and individually as “Party”.
WHEREAS: The parties hereby agree to enter into this Agreement under which AFFLE may utilize Advertising Assets of Partner for marketing and promotion of advertising campaigns provided by AFFLE.
- Definitions: 1.1 “Advertising Asset” means any mobile/tablets/desktop site or application that provides Ad Inventory for marketing or promotion for any person, products or services 1.2 “Ad Inventory” means digital advertising inventory, including, without limitation, web, mobile, application and/or widget-based advertising inventory; provided, however, that an application may constitute Ad Inventory hereunder only if such application (i) provides the user with clear and conspicuous notice about all material functionality, (ii) obtains informed consent from the user prior to download/install, and (iii) allows the user to maintain control over his or her computing environment. 1.3 “Ad Tag” means any programming code or HTML, placed as is or via APIs or via a SDK (Software Development Kit), that requests AFFLE’s platform to serve an Ad Format. 1.4 “Ad Format” means a unit or units of advertising content served via the Ad Tag such as banners ads, native ads, video ads, install ads etc. 1.5 “Click Tracker Tag” means a click-tracking tag used by AFFLE hereunder to track a user’s “click”. 1.6 “Install Tracker” means a programming code, whether via a SDK (Software Development Kit) or server to server integration, used by AFFLE hereunder to track a user’s “Install on first open”. 1.7 “Advertiser” means any third party who uses AFFLE’s platform or services for enabling advertising campaigns for promoting their Advertiser Asset. 1.8 “Advertiser Asset” means any mobile/tablets/desktop site or application owned by the Advertiser being advertised using AFFLE’s platform or service on Partner’s Advertising Asset. 1.9 “Buying Model” means the payment method adopted for completion of an Objective (Clicks, Installs, Activations or Impressions). Buying models will consist of CPCV, CPV, CPC, CPI, CPA or CPM. 1.10 “CPCV” means cost per complete view. 1.11 “CPV” means cost per Visit. 1.12 “CPC” means cost per click. 1.13 “CPI” means cost per Install on first open. 1.14 “CPA” means cost per Acquisition where Acquisition could be a lead, pack activation etc. 1.15 “CPM” means cost per Impression. 1.16 “Term” has the meaning set forth in Clause 2 hereto. 1.17 For the purpose of Data Protection Regulation “Controller”, “Data Subject”, “Personal Data”, “Processor” “Processes/Processing”, Sub- Processor each shall have the same meaning as provided in General Data Protection Regulation (“GDPR”) and/ or any other the applicable Data Protection Legislation and be interpreted in terms of GDPR and/ or the applicable Data Protection Legislation. 1.18 Data Protection Legislation: (i) the General Data Protection Regulation (“GDPR”) ((EU) 2016/679) and any nation implementing laws, regulations and secondary legislation, as amended or updated from time to time, and (ii) when the GDPR is no longer directly applicable in the United Kingdom, then any successor legislation to the GDPR or the Data Protection Act 1998. 1.19 For the purpose of Data Protection Regulation "Individual" means a natural person to whom Personal Information relates, also referred to as "Data Subject" pursuant to GDPR or any other applicable Data protection laws and regulations. 1.20 For the purpose of Data Protection Regulation "Personal Information" means data about an identified or identifiable Individual, also referred to as "Personal Data" pursuant to EU data protection laws and regulations 1.21 For the purpose of Data Protection Regulation “Service” means Affle and/or its Affiliates’ proprietary technology for enabling and optimizing publishers and advertisers' ability to sale and purchase advertising space inventory on certain mobile applications and mobile/desktop websites, including via programmatic auction (if applicable). 1.22 For the purpose of Data Protection Regulation “Users” means a human end-user accessing a mobile/web application/website.
- Term: This agreement shall take effect on the date written above and shall remain in effect for a period of twelve (12) consecutive months (the “Term”). Upon completion of term, this agreement shall automatically extend for another period of one (1) year unless terminated in accordance with this Agreement.
- Advertising Asset details: The following is the list of Mobile Assets for which both parties have entered into this Agreement.
Partner agrees to:
- Integrate AFFLE’s Ad Tags/ Ad Formats on all relevant Advertising Assets.
- Provide necessary support on integrating and testing AFFLE’s Ad Tags and Ad Formats.
- Represent and warrant that it will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any technology platform, code, software, services, interface, applications, solution, provided hitherto by AFFLE for provision of services under this agreement.
- Ensure Advertising Asset does not contain content or materials of any kind (including, but not limited to, text, graphics, images, photographs, sounds, etc.) that are illegal or objectionable (for example, materials that may be considered obscene, pornographic or defamatory).
- Not employ improper ways and means to deliver Objectives (Clicks, Installs, Activations or Impressions) using either manual cheats, specialized programs, code/s, script/s, bot/s, Trojan/s, emulator/s or other fraudulent methods. Not deliver Objectives by auto initiation of Video Views, Page Visits, Clicks, Activations and Installs and that these must be result of user initiated action. Partner acknowledges that if Partner uses any of the above mentioned improper ways and means to deliver any Objectives then AFFLE has the right to reject all payments where such improper ways and means are detected and/or reasonably suspected and has the sole right to terminate any outstanding order and black list the Media Company as the case may be for any future business.
- Participate in any joint press releases and marketing announcements, with prior approval from AFFLE.
AFFLE agrees to:
- Provide Party with reasonable technical support for the integration of Ad Tags.
- Ensure that Ad Tag shall not contain content or materials of any kind (including, but not limited to, text, graphics, images, photographs, sounds, etc.) that are objectionable (for example, materials that may be considered obscene, pornographic or defamatory).
- Represent and warrant that Ad Tags/Ad Format/Creatives does not infringe any third parties’ rights, including but not limited to patents, trademarks, copyrights, trade secrets, license or other proprietary rights.
- Provide online reports or reports on regular basis with details on completion of objectives such as Clicks, Installs, Activations or Impressions which shall be the basis of invoicing by the Partner. Such reports would not limit or in any way waive AFFLE’s rights to retrospectively report or detect any reasonably suspected improper ways and means of the Media Company which may be investigated at any time during the term of this agreement.
- Participate in any joint press releases and marketing announcements, with prior approval from both parties.
Invoicing and Payments:
- Invoice will be based on the confirmation from AFFLE or actual delivery as reported by the AFFLE Platform, after adjusting for any refunds/reversals/adjustments as the case may be. All invoicing and payment terms would follow the norms of the IAB. Invoice shall be raised by Partner to AFFLE at each month end or when the number confirmation is received from Affle, whichever is later for all deliveries during the previous month.
- If no discrepancy is reported to AFFLE by Partner within seven (7) calendar days from the date of receipt of campaign reports, the numbers will be considered as correct and final. Any discrepancy reported within 7 days as mentioned above is subject to be negotiated with evidence by both Parties.
- All Invoices shall be paid within sixty (60) days, from date of receipt of the final invoice after deduction of the withholding tax / levy as applicable.
- AFFLE would have the right to seek refunds/reversals/adjustments for any past fraudulent or improper ways reported/detected/suspected in accordance with this agreement and the Media Company or Partner would have to make such adjustments as per the written demand from AFFLE.
- This Agreement supersedes all prior agreements, insertion orders, written or oral, between the parties relating to the subject matter of this agreement. Internet Advertising Board – AAA/IAB Standard Terms and Conditions of Internet Advertising for Media Buys One Year or Less v3.0 section III ‘c’ (“IAB 3.0”) would be applicable for all orders made issued by AFFLE to the Media Company.
- Invoices will be raised with addition of taxes and levies as applicable from time to time as per government regulations
- In case of a campaign being paused, the applicable number for billing shall be as is reported by the AFFLE platform as of twenty four (24) hours after the pause request.
- The partner shall provide all required documents to process overseas payments from Singapore, as per applicable laws.
- The Partner irrevocably and expressly waives its right or claim to raise an invoice after the expiry of 6 months from the date of the end of activity period for which the services were provided. Partner acknowledges and agrees that any invoices submitted to Affle after such period shall be deemed null and void.
- Termination: Parties to the Agreement at any time without cause in their sole discretion may terminate the agreement upon thirty (30) calendar days’ prior written notice to the other. Either Party may terminate this Agreement immediately by notice in writing to the other if the other Party is in material breach or persistent breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within fifteen (15) calendar days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or is wound up, or is declared insolvent, or has a liquidator appointed over its assets.
- Indemnification and Limitation of Liability: Both Parties shall indemnify and keep indemnified each other against any liability, damage, expense, claim or cost (including reasonable legal fees and costs) suffered by or directly arising from a breach of terms and conditions, warranties or any mis-representation by the indemnifying Party of any of its obligations and/or warranties. Neither Party shall be liable in contract, tort (including negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise arising out of or in connection with this Agreement for loss of revenues, profits, contracts, business or anticipated savings; or any special, indirect or consequential losses. Notwithstanding anything written or otherwise, the Parties liability howsoever arising out of or in connection with this agreement shall not exceed, in total, regardless of the number of claims, in respect of all matters, an amount equal to the total value of the order issued by AFFLE to Partner under this agreement. Parties agree that the limitation of liability shall not apply for breach of confidentiality obligation, warranties as provided under GDPR or any other applicable Data Protection law and infringement of Intellectual Property Rights.
- Confidentiality: Each Party acknowledges Confidential Information shall be used solely for the business, affairs, plans, customers, technology, and products and shall not exploit such confidential information for its own benefit or the benefit of another without the prior written consent of the other party. The term “Confidential Information” shall mean all non-public information this Agreement or a Party designates as being confidential or which under the circumstances of disclosure ought to be treated as confidential. “Confidential Information” includes, without limitation, the terms and conditions of this Agreement, pricing, marketing or promotion of any product or services, business policies or practices, customers, potential customers or documentation or information received from others that a Party is obligated to treat as confidential. If a Party has any questions as to what comprises such Confidential Information, that Party shall consult with the other Party.“Confidential Information” shall not include information that was known to a Party prior to the other Party’s disclosure, or information that becomes publicly available through no fault of the Party. Each Party shall hold in strictest confidence, shall not use or disclose to any third Party, and shall take all necessary precautions to secure any Confidential Information of the other Party. Disclosure of such information shall be restricted solely to employees, agents, consultants and representatives who have been advised of their obligation with respect to Confidential Information.
Intellectual Property Rights:
- Partner will retain all right, title and interest in and to its, or its licensees, copyright and other intellectual property rights (“IPR”) relating to the Partner’s Properties.
- AFFLE will retain all right, title and interest in and to its IPR provided such IPR is not created or generated for Partner and/or by using Partner’s IPR.
- Partner grants to AFFLE, during the term, a non-exclusive, non-sub-licensable, royalty-free, world-wide license to use, reproduce and display Partner logo and Partner branding (“Partner Marks”) in the form provided by Partner solely for the purposes of marketing the Ads.
- Upon the expiration or termination of this Agreement, each Party will cease using the IPR of the other.
- Each Party to this Agreement represents and warrants to the other that it has, and will retain throughout the Term, all right, title and authority to enter into, and perform all of its obligations pursuant to, this Agreement.
- AFFLE warrants that it complies with, and shall continue to comply with, all applicable Singapore laws and regulations applicable to AFFLE’s performances under this Agreement.
- Parties warrant that use of each other’s IPR shall not infringe any third party rights.
- In addition to the above for the purpose of compliance with GDPR and/ or any other applicable data protection law/ regulation in individual countries, Partner warrants the following for any user data that it receives from
/ sends to Affle
4.1 Consent Requirements
- Partner confirms and warrants that any personal information provided to Affle is received post necessary consent from the User/ individual in compliance with the provisions of GDPR and/ or any other applicable Data Protection Law/ Regulation as the case may be and shall be used only for the purpose for which the consent is so obtained.
- Partner shall seek consent from the Data Subject to the standard and provisions of GDPR and/ or any other applicable Data Protection Legislation to collect, process, transmit, display or use their Personal Data as contemplated by the Agreement.
- In the event the consent to handle Personal Data is withdrawn by the Data Subject/ User, Partner shall notify Affle without undue delay no later than 24 hours after becoming aware of the consent being withdrawn and shall stop using, transmitting and/ or processing the data immediately after withdrawal of such consent;
- Partner shall allow Affle or any third Party so designated by Affle to conduct/ undertake audit for the purpose of demonstrating compliance with applicable provisions of GDPR and/ or any other applicable Data Protection Law;
- Partner shall indemnify, defend and hold harmless Affle and its Affiliates against and from all loss, liability, damages, costs (including legal costs), fees, claims and expenses arising out any third party claims which Affle may incur or suffer by reason of any breach of any of the provisions of GDPR and/ or any other applicable Data Protection Law.
4.2 Data Processing and Protection
- Partner agrees that, with regard to the use and processing of Personal Data the Data Controller, Data Processor and/or Sub-processor and their Affiliates shall comply with all applicable laws and regulations as are applicable of the Data Protection Legislation including GDPR.
- The scope of Data processing and its usage shall be limited to the extent required to deliver the services diligently and efficiently as set forth in the Agreement and the data, if necessary may be retained to fulfil the obligations as set forth under the Agreement.
- Partner agrees that it will process Data in compliance with applicable Data Protection Legislation, to provide the Service, including but not limited to fraud prevention, bot detection, quality rating, analytics, enhancements, optimization, viewability, geo location services, ad security, ad verification services and service misuse prevention. Where applicable, the Parties may process Data in anonymized and aggregated forms.
In case the Partner appoints any sub-processor then the:
- Sub-processor shall only process Personal Data on behalf of and in accordance with Data Processor’s instructions and shall treat Personal Data as confidential information of the Data Processor. Data Processor instructs Sub-processor to process Personal Data solely for the provision of the Services. Sub-processor may process Personal Data other than on the written instructions of Data Processor as directed by the Data Controller/ Processor if it is required under applicable law to which Data Controller, Data Processor and/or Sub-processor is subject.
- Data Processor instructs Sub-processor to process Personal Data (a) in accordance with the Agreement and Schedules thereto; (b) to provide the Services and any related technical support as detailed in the Agreement; and (c) to comply with other reasonable instructions provided by Data Processor where such instructions are consistent with the terms of the Agreement and this Addendum. Data Processor shall ensure that the instructions for processing of Personal Data are in compliance with GDPR and/ or any other applicable Data Protection Legislation. If Sub-processor believes or becomes aware that any of Data Processor’s instructions conflict with any Data Protection Legislation, Sub-processor shall inform Data Processor immediately. Sub-processor may process Personal Data other than on the instructions of Data Processor if it is required under applicable law to which Sub-processor is subject. Where Sub- processor is relying on applicable law as the basis for processing Personal Data, Sub-processor shall promptly notify Data Processor of the applicable law before processing the data as required by the applicable laws unless those applicable laws prohibit Sub-processor from so notifying the Data Processor.
4.3 Security, Privacy, and Audit RightsIn the event of any Personal Data breach (actual or suspected), Partner at no cost to Affle shall:
- notify Affle of such Personal Data breach without undue delay, no later than 24 hours after becoming aware of or first suspecting the Personal Data Breach;
provide Affle without undue delay no later than 48 hours after becoming aware of or first suspecting the Personal Data Breach such details as Affle may require in relation to:
- the nature and impact of the Personal Data Breach, including the categories and approximate numbers of Data Subjects and Personal Data, records concerned;
- any investigations into such Personal Data Breach;
- the likely consequences of the Personal Data Breach; and
- any measures already taken or proposed to address the Personal Data Breach, including but not limited to mitigate its possible adverse effects and prevent the reoccurrence of the Personal Data Breach or any similar breach, provided that, (without prejudice to the above obligations) if Partner cannot provide the details as mentioned above within the mentioned timeframes, Partner shall, before the closure of the timeframe, provide Affle with reasons for such delay and when it expects to be able to provide relevant details (which may be phased), and give Affle regular updates on these matters.
4.4 Controller RequirementsThe Partner as controller shall:
- at no cost to Affle, record and then refer to Affle promptly (and in any event within 5 Business Days of receipt) any Data Subject request or complaint which is made under GDPR and/ or any other applicable Data Protection Legislation in relation to the Data processing;
- at its cost and expense, provide such information and cooperation and other assistance as a Party reasonably requests in relation to a Data Subject request or complaint made under GDPR and/or Data Protection Legislation within the timescales reasonably required by Affle;
- implement and maintain a program to ensure that all collection and Processing at its end and transmission of Personal Data is sufficiently safeguarded and secured;
- maintain, monitor and review records of user activities, exceptions, faults and privacy in relation to the relevant Personal Data; and
- ensure information security events are produced, maintained, monitored, reviewed and if required enhanced on an ongoing basis.
- ensure that the relevant technical solutions are configured such that the default settings protect Data Subject privacy;
- 4.5 Return, deletion and other data useUpon termination or expiration of the Agreement, or upon Affle’s request, Partner will immediately cease handling Personal Data, and at Affle’s choice, return to Affle in a manner and format requested or destroy, any or all Personal Data in Partner’s possession, power or control, and certify to Affle that Partner has done so. Affle may aggregate or anonymise source data, including Personal Data, made available to Affle in connection with the Services, and use such data and contact details of the Partner’s staff, to operate and improve its services, reporting, data science and analytics, legal compliance, including audits, fraud prevention, retention and logging, and marketing to the Partner’s staff.
- 4.1 Consent Requirements
- Non- Solicitation: During the Term of this Agreement and for a period of one (1) year hereafter, Partner or Media Company shall not knowingly solicit, directly or through any third party, any Advertiser for whom it delivered service to Affle under this Agreement. The Partner or Media Company shall not encourage any such Advertiser to transfer from Affle services and work directly with the Partner or Media company. Without prejudice to any other right of Affle according to this Agreement and the applicable law, in the event the Partner or Media Company directly solicits such Advertiser and/or causes them to work directly with itself, the Partner or Media Company shall pay Affle 50% of the revenue what Affle would have otherwise earned if the Partner or Media Company had not violated this provision. During the term of this agreement and for a period of 1 Year thereafter, Partner or Media Company shall not (either directly or indirectly through a Third Party) employ, solicit to employ, cause to be solicited for the purpose of employment, any employees of Affle, or aid any third person to do so, without the specific written consent of Affle.
- Force Majeure: Parties agree that neither party will be liable for failure to perform, due to acts of God, fires, explosions, telecommunications, Internet or network failure, results or vandalism or computer tracking hacking, storm or other natural occurrence, national emergencies, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity. You or we will give notice and will use commercially reasonable efforts to minimize the impact of any such event.
- Notices: Parties agree to receive electronic communication and agree that all notices, disclosures, and other communications that are provided electronically, via e-mail or any commercially reasonable means satisfy any legal requirement that such communications be in writing.
- Key Contacts: The parties shall each appoint a key contact(s) who shall stay in regular contact during the term to ensure that each party complies with its obligations under this Agreement.
- General: This Agreement constitutes the entire agreement between the parties in relation to its subject matter and replaces and extinguishes all prior agreements between the parties and all prior representations, whether written or oral, made by either party with respect to such subject matter provided. All additions and/or modifications to this agreement must be made in writing and must be signed by both parties.
- Assignment: Neither party shall be entitled to assign its rights and obligations under this Agreement without the prior written consent.
Governing Law and Dispute resolution:
- If the entity signing the Order Form is Affle (India) Limited, this Agreement shall be governed by and construed in accordance with the laws of the India without regard to the provisions of conflicts of law. The courts at Delhi, India, shall have exclusive jurisdiction over any dispute or claim arising out of or relating to this Agreement or any breach thereof.
- If the signing entity is Affle International Pte. Ltd., this Agreement shall be governed by and construed in accordance with the laws of Singapore without regard to the provisions of conflicts of law. Any dispute or claim arising out of or relating to this Agreement or any breach thereof shall be solely settled by arbitration in Singapore in accordance with the Arbitration Rules of the Singaporean International Arbitration Centre (“SIAC”) for the time being in force, which rules are deemed to be incorporated by reference in this Section. The arbitration tribunal shall consist of one (1) arbitrator to be appointed by the Chairman of SIAC. The language of the arbitration shall be English. Subject to the above, the courts at Singapore shall have exclusive jurisdiction.